Copyright and Fair Use

Copyright is a form of protection that the U.S. gives to creators and authors of original creative works, including without limitation, literary, dramatic, musical, artistic, and certain other intellectual works. The protection applies to both published and unpublished works. Copyright is the right of the author, artist, composer, or creator to control the use of his or her work by others.

To acquire copyright protection, a work must be an idea that is fixed in a tangible form of expression. A work is original when a human author produces it and it possesses at least a minimal degree of creativity. A work is fixed when is captured in a sufficiently permanent medium that would allow the work to be perceived, reproduced, or communicated for more than a short time. Copyright protection is automatic from the moment the original work is fixed. A non-exhaustive list of works that are subject to copyright protection are literary works, musical works, dramatic works, motion pictures, pictorial, graphic, and sculptural works. 

U.S. copyright law does not protect ideas, procedures, processes, systems, methods of operation, concepts, principles, or discoveries. It also does not protect works by federal government officers and employees prepared in the course of that person’s official duties.

Generally, the author or creator of the copyrighted work owns the copyright; however, the original author or creator can sell his or her copyright to another individual or entity. In addition, an employer owns the copyright in a work created by an employee acting in the scope of his or her employment. In the case of independent contractors, if the contract specifies a “work made for hire,” the copyright holder is the person that hired the independent contractor.

The general term of protection for copyrighted works is the life of the author (or creator) plus 70 years. In the case of a “work made for hire,” copyright lasts for the lesser of either 95 years from the publication or 120 years from the creation of the work. While these rules cover most situations that would be encountered, there are other situations, which can be worked out using the Duration of Copyright circular published by the U.S. Copyright Office.

• Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works under certain circumstances, such as criticism, comment, news reporting, teaching, scholarship, and research. Courts consider the following four factors in determining whether a particular use is “fair use.”
  • Purpose and character of the use, including whether the use is for commercial or nonprofit educational purposes.
  • Purpose and nature of the copyrighted work.
  • The amount of the work used in relationship to the work as a whole.
  • The effect of the use on the market for the work or value of the work.
  • For more information regarding fair use and application of these factors, see the U.S. Copyright Office’s More Information on Fair Use page. The Copyright Office has also published a circular on the Reproduction of Copyrighted Works by Educators and Librarians, which may be helpful for fair use analysis.

In response to rapidly changing technology, Congress passed the DMCA in 1998. The DMCA implements two treaties, which require that members prevent the circumvention of measures to protect copyrights and also protect tampering with copyright management information. The DMCA covers all copyrighted material, including digital material, and prohibits the downloading or distribution of copyrighted files to which an individual or entity does not have rights. For more information on the DMCA, see the U.S. Copyright Office’s Summary of the Act.

The TEACH Act (Technology, Education, and Copyright Harmonization Act) allows educators to perform or display portions or copyrighted works in online learning environments. To utilize these benefits, educators must meet certain requirements and take reasonable measures to assure that only enrolled students will have access to materials during the course of instruction. For more details and guidance on using materials under the TEACH Act, see the Copyright Clearance Center’s TEACH Act guide.

Southern welcomes scholarly submissions in its institutional repository as long as those submissions comply with U.S. Copyright Law and the original publisher’s policies. If you would like to submit a previously published article to KnowledgeExchange@Southern, please check your agreement with the original publisher to confirm that your submission will not cause a problem and, if required, seek written permission from the publisher prior to submitting your article to KnowledgeExchange@Southern. Permissions for many publishers can be found at SHERPA RoMEO.

For more information, see the Copyright and Fair Use research guide.